Harasz et al v. Katz et al
Filing
79
OMNIBUS RULING (see attached). Plaintiffs' 51 Cross-Motion for Partial Summary Judgment is DENIED. Defendants' 48 52 Motions for Summary Judgment are GRANTED. The Clerk is directed to enter judgment for Defendants in accordance with Federal Rule of Civil Procedure 58. Those judgments will terminate the case, and the Clerk is directed to close the file. Signed by Judge Charles S. Haight, Jr. on July 19, 2018. (Pskowski, R.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GEORGE HARASZ, and
DOUGLAS WIRTH,
Plaintiffs,
No. 3:15-cv-001528 (CSH)
v.
JOETTE KATZ,
ELIZABETH FERREIRA,
TOWN OF GLASTONBURY,
JAMES KENNEDY, and
WILLIAM TRANTALIS,
July 19, 2018
Defendants.
OMNIBUS RULING ON DEFENDANTS' AND PLAINTIFFS' CROSS-MOTIONS FOR
SUMMARY JUDGMENT
HAIGHT, Senior District Judge:
By prior Ruling [Doc. 46] reported at 239 F. Supp. 3d 461 (D. Conn. 2017) ("Conversion
Ruling"), familiarity with which is assumed, the Court granted in part Defendants' motion to dismiss
Plaintiffs' complaint, and converted that motion to dismiss in part into motions for summary
judgment.
Those conversions resulted in three motions for summary judgment, which this Ruling
resolves.
I. Procedural Background
At the pertinent times, Plaintiffs Harasz and Wirth resided in the Town of Glastonbury,
Connecticut, and took in foster children for adoption under the supervision of the Connecticut
Department of Children and Families ("DCF"). In November 2011, at the initiation of DCF, Harasz
and Wirth were arrested by Glastonbury police officers on several charges of misconduct with
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respect to certain adopted children in their care. Harasz and Wirth were charged with sexual assault,
cruelty to persons, and risk of injury to a minor. A state court bench trial resulted in the acquittal of
Wirth on all charges against him. The State subsequently dropped all charges against Harasz.
Plaintiffs then filed a civil rights action in Connecticut Superior Court, which was removed
to this Court on the basis of federal question jurisdiction. The defendants were Joette Katz, the DCF
Commissioner; Elizabeth Ferreira, a DCF social worker; the Town of Glastonbury; and James
Kennedy and William Trantalis, Glastonbury police officers. The individual defendants were
involved, in one way or another, with the charging, arrests, or state proceedings against Harasz or
Wirth. Plaintiffs alleged federal constitutional and state constitutional and law claims against
various individual defendants. Specifically, Plaintiffs asserted claims for failure to train and
supervise DCF employees; false arrest; malicious prosecution; and fabrication of evidence. The
operative pleading is an Amended Complaint [Doc. 33].
The Conversion Ruling dismissed all of Plaintiffs' claims against Katz and Trantalis. As for
Ferreira, the only claims against her were for fabrication of evidence. The Court converted
Defendants' motion to dismiss those claims against Ferreira into a motion for summary judgment.
As for Kennedy, the only claims against him (and against Glastonbury for indemnification) were for
fabrication of evidence and malicious prosecution. The Court converted Defendants' motion to
dismiss those claims into a motion for summary judgment.
Those conversions led to the summary judgment motions this Ruling resolves. Defendant
Ferreira moves for summary judgment [Doc. 48] with respect to the counts in the Amended
Complaint naming her as a defendant. Plaintiffs Harasz and Wirth move for partial summary
judgment on liability [Doc. 51] against Defendant Kennedy. Defendants Kennedy and Town of
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Glastonbury move for summary judgment [Doc. 52] with respect to the counts in the Amended
Complaint naming them as defendants.
II.
Factual Background
These uncontested facts are drawn from the Parties' various statements of fact, filed in the
format prescribed by Local Rule 56(a). See Docs. 48, 52-2, 59-1, 71, 73, 75-1, 76-2.
During the pertinent times, Plaintiffs were citizens of the United States and the State of
Connecticut. They resided together in the Town of Glastonbury, Connecticut.
Defendant Elizabeth Ferreira was employed as a social worker by the Connecticut
Department of Children and Families ("DCF"), assigned to its Manchester, Connecticut office.
Defendant Town of Glastonbury, Connecticut is a municipality which operates, directs and
controls the Glastonbury Police Department. Defendant James Kennedy is a Glastonbury police
officer.
All claims against named Defendants Joette Katz and William Trantalis were dismissed by
prior Ruling [Doc. 46] of this Court. See 239 F. Supp. 3d 461, 506-07.
Plaintiffs advised DCF that they were willing to take in foster children for adoption,
providing that none had past sex abuse issues. Over the years, DCF was responsive to Plaintiffs'
offer. Prior to 2011, Harasz and Wirth adopted nine children, who were born during the years 1990
though 2006.
The events underlying Plaintiffs' remaining claims, which survived the prior motion to
dismiss and lie at the heart of the present summary judgment motions, relate to disclosures allegedly
made by their youngest child, a boy born August 2006 and adopted by Plaintiffs in April 2007,
identified throughout as "Doe #9." Doe #9 suffers from learning disabilities and developmental
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delay.
Doe #9 and four of his siblings were in DCF's care and custody as of February 8, 2011,
pursuant to an order of temporary custody. The siblings were removed from Plaintiffs' care
following disclosures of abuse made by an older sibling, Doe #4.
Defendant Ferreira was assigned to Doe #9's case as a treatment social worker on or about
February 28, 2011. In early June 2011, Doe #9 began receiving therapy from Dr. Carol Kagel, a
psychologist.
On August 3, 2011, Doe #9 attended his ninth therapy session with Dr. Kagel. Dr. Kagel
reported that, during the August 3 session, Doe #9 made a spontaneous disclosure of sexual abuse
by Plaintiff Harasz. On or about August 9, 2011, Dr. Kagel, a mandated reporter, made a report of
suspected child abuse to the DCF telephone hotline. On August 9, 2011, Defendant Kennedy
received a call from DCF, alerting him to Dr. Kagel's report of Doe #9's disclosure.
As a result of Dr. Kagel's report, Defendant Kennedy arranged for a forensic interview of Doe
#9. On August 11, 2011, Doe #9 was interviewed at St. Francis Hospital and Medical Center, in
Hartford, Connecticut ("the forensic interview"). The forensic interview was conducted by Ann
Glaser, a diagnostic interviewer on the staff of the St. Francis Children's Center, and was videorecorded. Defendants Ferreira and Kennedy observed the forensic interview from behind a one-way
mirror in an adjoining room. Glaser wore an earpiece during the interview, through which the
observers could communicate with her. Ferreira and Kennedy were also equipped with devices
which enabled them to hear what was being said in the interview room.
Following the forensic interview on August 11, and according to the reports of Defendant
Ferreira, on Friday, August 12, 2011, Doe #9 made a disclosure of sexual abuse to his foster parent,
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Lisa K. That same day, Defendant Ferreira supervised Doe #9 during a sibling visit at DCF's
Manchester office. Ferreira reports that Doe #9 made a disclosure of sexual abuse to Ferreira during
that sibling visit. Defendant Ferreira reported these additional disclosures to Defendant Kennedy
on August 16, 2011.
On September 1, 2011, Defendant Kennedy signed a five-page, 16-numbered-paragraph
sworn affidavit captioned "Application for Arrest Warrant" and addressed to "A Judge of the
Superior Court." Under the caption on the application reading "Name and Residence of Accused,"
the name of Plaintiff George F. Harasz and his Glastonbury address are typed in. Kennedy's affidavit
supporting the arrest warrant application describes, inter alia, the content of the August 11 forensic
interview, as well as Doe #9's disclosures to Kagel, Defendant Ferreira, and Lisa K. Defendant
Kennedy consulted the videotape of the forensic interview in drafting his affidavit. The affidavit
concluded that there was probable cause to believe that Plaintiff Harasz had violated Conn. Gen.
Stat. § 53a-70 and § 53a-73 (sexual assault).
On November 22, 2011, Judge Taylor of the Connecticut Superior Court, sitting in
Manchester, signed the arrest affidavit, thereby converting that document into a warrant for Plaintiff
Harasz's arrest.
On November 30, 2011, Harasz and Wirth were arrested by the State of Connecticut
authorities on charges of misconduct with respect to some of the adopted children in their care.
Specifically, the Plaintiffs were charged, inter alia, with sexual assault, cruelty to persons, and risk
of injury to a minor. Plaintiffs denied all charges. In September 2014, following a bench trial before
a state court judge, Wirth was found not guilty of all charges against him. In October 2014, Harasz
moved successfully for the dismissal of all charges against him. Plaintiffs' state court exonerations
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on these charges led directly to the federal constitutional and state law claims they allege in the
present action.
III.
Standard for Summary Judgment
The principles governing summary judgment motions are well established. Smith v.
Champion Int'l Corp., 573 F. Supp. 2d 599, 607 (D. Conn. 2008) (citing Gibbs ex rel. Estate of
Gibbs v. CIGNA Corp., 440 F.3d 571, 575 (2d Cir. 2006)). A motion for summary judgment shall
be granted "if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If, after discovery, the
nonmoving party "has failed to make a sufficient showing on an essential element of [his] case with
respect to which [he] has the burden of proof," then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must "demonstrate the absence of any
material factual issue genuinely in dispute" to be entitled to summary judgment. Am. Int'l Grp., Inc.
v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981) (quoting Heyman v. Commerce & Indus.
Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)).
"[T]he mere existence of factual issues – where those issues are not material to the claims
before the court – will not suffice to defeat a motion for summary judgment." Quarles v. Gen.
Motors Corp., 758 F. 2d 839, 840 (2d Cir. 1985) (per curiam). A fact is material if it "might affect
the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). "[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving
party," then a dispute concerning the material fact is genuine. Id. All inferences and ambiguities
must be viewed in the light most favorable to the nonmoving party. Rogoz v. City of Hartford, 796
F.3d 236, 245-46 (2d Cir. 2015). However, "mere conclusory allegations, speculation or conjecture
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will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51
(2d Cir. 1996) (citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences
in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate
Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
These principles apply even where, as here, the Court is presented with cross-motions for
summary judgment. Larsen v. Prudential Ins. Co. of Am., 151 F. Supp. 2d 167, 171 (D. Conn. 2001)
(citing Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir. 1988)). "The movant's burden does not
shift when cross-motions for summary judgment are before the Court. Rather, each motion must be
judged on its own merits." Id. (citing Assoc. of Int'l Auto Mfrs., Inc. v. Abrams, 84 F.3d 602, 611
(2d Cir. 1996)).
The nonmoving party "must present specific evidence demonstrating a genuine dispute."
Gannon v. UPS, 529 F. App'x 102, 103 (2d Cir. 2013) (citing Anderson, 477 U.S. at 248) (summary
order). A genuine issue of fact exists when there is sufficient "evidence on which the jury could
reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The nonmoving party may not "rely
on mere speculation or conjecture as to the true nature of the facts to overcome a motion for
summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
IV. The Lothstein Affidavit
Plaintiffs filed an affidavit by psychologist Leslie Lothstein, PhD, in support of their
opposition to the Defendants' motions for summary judgment.
Lothstein Aff., Doc. 62-8.
Defendants object to certain of Dr. Lothstein's conclusions, arguing them inadmissable under the
federal rules. Ferreira Reply Br. 4-5; Glastonbury Def. Reply Br. 5-6.
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Dr. Lothstein states, at paragraph 20 of his affidavit, "It is my opinion within a reasonable
degree of psychological certainty that Doe #9 cannot tell the objective truth and present a valid,
historical recollection." (emphasis added). Dr. Lothstein goes on to opine:
38. It is my opinion that Doe #9’s lack of disclosure about Daddy
Harasz during the 8/11/2011 forensic interview should have been a
red flag that the prior alleged disclosure to Dr. Kagel was
fundamentally flawed and thus suspect.
....
40. Given the high stakes nature of this case, for Doe #9 to give an
allegedly clear disclosure the very next day on 8/12/2011, when he
was not able to verbalize any such disclosure during the forensic
interview on 8/11/2011, raises a red flag and casts doubt on the
veracity of such disclosure.
I understand Dr. Lothstein to say, through the quoted paragraphs, that Doe #9's conduct during the
forensic interview, in combination with Dr. Lothstein's professional opinion that Doe #9 "cannot"
tell the truth, entirely discredits the veracity of Doe #9's disclosures to Dr. Kagel and Defendant
Ferreira.1
1
Plaintiffs seek to use the Lothstein Affidavit to cast doubt on the veracity of Dr. Kagel
and Defendant Ferreira's reports of Doe #9's purported disclosures. See Pl. Sur-Reply Br., Doc.
72, 1 ("Plaintiffs' claim is that after viewing the videotape, it becomes abundantly clear that Doe
#9 was incapable of making the reported disclosure to Dr. Kagel on 8/3/2011 and to Ferreira on
8/12/2011 – that it was self-evident that such disclosures were impossible.") Plaintiffs urge that
"Dr. Lothstein was clear in what he stated – that the 'disclosure' to Dr. Kagel was suspect as was
the disclosure to Ferreira – that the reports were both lies." Id. at 2 (emphasis in the original). I
have reviewed the Lothstein Affidavit carefully, and I do not agree with Plaintiffs' reading of the
relevant paragraphs. I find the best and most natural reading of Dr. Lothstein's words are that
Doe #9's "prior alleged disclosure" to Dr. Kagel and "allegedly clear disclosure" to Defendant
Ferreira were fundamentally suspect, not that Dr. Kagel and Defendant Ferreira's accounts of
those alleged disclosures were fundamentally suspect. In any event, if I were to adopt Plaintiffs'
proposed reading of the Lothstein Affidavit, the paragraphs at issue would remain inadmissible,
as impermissible expert opinion on the credibility of a fact witness, as well as falling outside the
boundaries of Dr. Lothstein's expertise as defined by the strictures of Rule 702.
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I conclude that the quoted paragraphs of the Lothstein Affidavit are inadmissable. Affidavits
submitted in support of, or opposition to, a motion for summary judgment "must . . . set out facts that
would be admissible in evidence." Fed. R. Civ. P. 56(c)(4). At trial, experts may not testify as to
the credibility of a fellow witness:
It is a well-recognized principle of our trial system that determining
the weight and credibility of a witness's testimony belongs to the jury
. . . . Thus, this court, echoed by our sister circuits, has consistently
held that expert opinions that constitute evaluations of witness
credibility, even when such evaluations are rooted in scientific or
technical expertise, are inadmissible under Rule 702.
Nimely v. City of New York, 414 F.3d 381, 397–98 (2d Cir. 2005) (citations, alteration, and internal
quotation marks omitted). See also Fed. R. Evid. 702. "[T]he rationale set forth by the Second
Circuit could not be clearer: that the Federal Rules of Evidence do not allow one party to call an
expert to opine about the tendencies or incentives of the other party's fact witnesses to lie or not to
lie." United States v. Noze, 255 F. Supp. 3d 352, 353-54 (D. Conn. 2017). See also State v. Greiner,
257 Conn. 797 (Conn. 2001) (admission of improper expert testimony vouching for the credibility
of child sexual abuse victim was reversible error).
Accordingly, Dr. Lothstein's opinions as to Doe #9's credibility, articulated in paragraphs 20,
38, and 40 of his affidavit, are inadmissable.2
Even if these assessments of Doe #9's credibility were admissible as evidence, Plaintiffs have
not made a compelling case for their relevance, and admitting these paragraphs would have no
ultimate effect on my resolution of the instant motions.
2
This conclusion would still hold, were I to adopt Plaintiffs' unconvincing reading of the
Lothstein Affidavit, and assume Dr. Lothstein, at paragraphs 38 and 40, was attacking the
credibility of Dr. Kagel, Lisa K, and Defendant Ferreira, rather than that of Doe #9.
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At paragraph 39 of his affidavit, Dr. Lothstein opines, "This was a high stakes case and in
my opinion the 8/11/2011 forensic interview was not properly used as evidence of an alleged
disclosure against George Harasz by Doe #9. This should have been self-evident to anyone viewing
the forensic interview." Defendants object to the admission of this paragraph, on the grounds that
it draws conclusions beyond Dr. Lothstein's established expertise. Ferreira Reply Br. at 4;
Glastonbury Def. Reply Br. at 6. I find that the first quoted sentence is inadmissable, as not based
on any established expertise. Further, to the extent that Dr. Lothstein's conclusion "should have been
self-evident to anyone viewing the forensic interview" (emphasis added), the conclusion is, by the
expert's own admission, not a proper application of expert testimony, which should be limited to
circumstances where "the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue."3 Fed. R. Evid. 702(a).
For the foregoing reasons, I find that paragraphs 9, 38, 39, and 40 of the Lothstein Affidavit
are inadmissable under the rules of evidence, and therefore may not properly be considered on a
motion for summary judgment.4
3
Plaintiffs make this point for me, in a supplemental response to the Glastonbury
Defendants' Rule 56(a)(2) Statement : "Dr. Lothstein attests that because the marked disparity
was 'self-evident' i.e., obvious, it thus was a 'red flag' that Doe #9 could not possibly have made
the disclosures alleged by Kagel and Ferreira. In other words, anyone – even this Court,
watching the video could and should draw a conclusion that the unwitnessed disclosures were
'suspect.'" Doc. 76-2 at 3 (emphases in the original). While I appreciate Dr. Lothstein's efforts to
assist the Court, to the extent that, in his professional opinion, he thinks no professional opinion
is necessary to perceive the purported "red flags" in the interview video, he has effectively put
himself out of a job.
4
While I hold that the paragraphs indicated are inadmissible as a matter of law, my
evidentiary holding goes no further. In other words, by considering some portions of the
Lothstein Affidavit in the remainder of this opinion, I do not necessarily make any final
determination as to the admissibility of any part of that affidavit. Defendants have, for example,
indicated that they question whether Dr. Lothstein had sufficient contact with Doe #9 upon which
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V. Fabrication of Evidence
Plaintiffs' claims for fabrication of evidence are alleged in Counts Four and Seven of the
Amended Complaint. Those counts named as defendants Ferreira, Kennedy and Trantalis. The
Conversion Ruling dismissed all claims against Trantalis, who accordingly disappeared from the
litigation and is not involved in these summary judgment motions.
The fabrication of evidence claims against Ferreira and Kennedy remained, and were
converted into motions for summary judgment.
As determined by this Court's prior ruling on
Defendants' Motions to Dismiss, "Counts Four and Seven may be regarded as duplicative. They will
be considered together." 239 F. Supp. 3d at 488.
The claims are brought under 42 U.S.C. § 1983, for fabrication of evidence in violation of
Plaintiffs' Fourteenth Amendment right to due process of laws, and/or Fourth Amendment right to
a fair trial.5 Amend. Compl. ¶¶ 198-202, 207-10. Plaintiffs allege that
to draw his scientific conclusions, citing for support the fact that Dr. Lothstein refers to his single
examination of Doe #9 as a "brief contact." See Def. Ferreira Reply Br. at 3; Glastonbury Def.
Reply Br. at 5-6; Lothstein Aff. at ¶¶ 7, 18. I draw no conclusion as to that evidentiary objection,
at this juncture.
5
As my prior opinion in this case explained at length, the opinions of the Second Circuit
"ha[ve] been inconsistent as to whether fabrication of evidence claims arise under the Sixth
Amendment right to a fair and speedy trial, or under the due process clauses of the Fifth and
Fourteenth Amendments. . . . [R]egardless of which constitutional amendment prohibits
government officers from fabricating evidence, these cases clearly establish that the harm caused
by such conduct is redressable through a § 1983 action for damages." Morse v. Fusto, 804 F.3d
538, 547 n.7 (2d Cir. 2015) (citations and internal quotation marks omitted) (quoting with
approval related district court opinion Morse v. Spitzer, No. 07-cv-4793(CBA)(RML), 2013 WL
359326 at *3 n. 1 (E.D.N.Y. Jan. 29, 2013)). The elements of a denial of the right to a fair trial
claim based on fabrication of evidence are "an (1) investigating official (2) fabricates
information (3) that is likely to influence a jury's verdict, (4) forwards that information to
prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result."
Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016). "Under the Second
Circuit's holding in Garnett, Harasz and Wirth do not need a Fourth Amendment claim in order
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The defendants knowingly created false and misleading evidence,
twisted and blatantly misrepresented the 8/11/2011 forensic
[interview] into gross perversion of the facts, fabricated new
"disclosures" which were not witnessed or corroborated, colluded
with each other and witnesses to create new "disclosures["] for the
sole purpose of winning their case, not in the pursuit of justice.
The fabrication of evidence did not stop with the 8/11/2011 forensic
but continued up through September 2014 . . . . From 2011 to 2014,
the defendants colluded with each other and with witnesses, coaching
them into new "disclosures" for the sole purpose of winning their case
....
Id. ¶ 199-200.
In ruling on Defendants' Motions to Dismiss, this Court held that "[i]n the circumstances of
this case, and on the record generated by the present motion to dismiss, it is apparent that if Plaintiffs
are able to prove that the fabrication of evidence they allege actually occurred, Plaintiffs have
established all the elements of a constitutional claim against some Defendant or Defendants. " 239
F. Supp. 3d at 492. Therefore, to defeat Defendants' motions for summary judgment on this claim,
Plaintiffs need only establish a material issue of disputed fact as to whether either Defendant actually
fabricated evidence.
In the discussion that follows, the fabrication claims against Kennedy and Ferreira are
considered separately. Kennedy's case has generated cross-motions: Kennedy moves for summary
judgment on Plaintiffs' claim against him for fabrication of evidence; Plaintiffs cross-move for
partial summary judgment on liability on that claim against Kennedy. Ferreira moves for summary
judgment on Plaintiffs' claim for fabrication against her. Plaintiffs oppose that motion, but do not
cross-move against Ferreira for summary disposition.
to state a viable constitutional due process claim, but it is available to them in any event."
Harasz, 239 F. Supp. 3d at 492.
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A. As to Defendant Kennedy
As to Defendant Kennedy, much of the Amended Complaint's claim for fabrication of
evidence relies on his alleged falsification of the arrest affidavit. Specifically, Plaintiffs assert that
Kennedy misstated or misrepresented statements made by Doe #9 at the August 11, 2011 forensic
interview, which Kennedy observed: "Plaintiffs' claim is that the statements Kennedy made in his
arrest affidavit in regard to the forensic interview were fabricated in that they were affirmative
falsehoods in which he deliberately mischaracterized what Doe #9 said, combined with misleading
statements and omissions." Pl. Br. in Opp. to Glastonbury Def. [Doc 62] at 19.
The Conversion Ruling summarized the claim against Kennedy thus:
If when Kennedy drafted the arrest affidavit he knowingly and
deliberately misstated or misrepresented what Doe # 9 said during the
August 11, 2011, forensic interview, with the intended effect of
inculpating one or both Plaintiffs in criminal offenses in order to
obtain a judicial warrant, Kennedy is probably liable for fabrication
of evidence.
....
[T]he merit of Plaintiffs' claim against officer Kennedy for . . .
fabrication of evidence will depend, at the end of the day, upon two
pieces of evidence whose contents cannot reasonably be disputed. .
. .The tape [of Doe # 9's forensic interview] is available. . . .
Kennedy’s affidavit is in the record. . . .Whether the contents of the
affidavit accurately recite the substance of the interview, or materially
misrepresent those contents, is a question forming the stuff of
summary disposition by a trial judge or fact finding by a trial jury.
239 F. Supp. 3d at 496-98.
As explained in that Ruling, while these two key pieces of evidence were both technically
available to the Court, consideration of the tape of Doe #9's forensic interview was inappropriate on
a Rule 12(b)(6) motion to dismiss. The case has now reached the summary disposition stage, where
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the tape, as well as the affidavit, may be considered. In addition, the Court has received a certified
transcription of the August 11, 2011 forensic interview, filed under seal [Doc. 50]. The transcript
does not substitute for the viewing of the tape; it cannot convey the "physical setting and actions"
accompanying the words of the interviewer and interviewee. See 239 F. Supp. at 497-98.
Nonetheless, the transcript, whose accuracy is uncontested, is a useful common ground of
understanding, from which this opinion will quote at will, considering it an accurate representation
of the words, if not the complete context, of the August 11 interview.
In their Opposition Brief to the Glastonbury Defendants' Motion for Summary Judgment
[Doc. 62] and the supporting Rule 56(a)(2) Statement [Doc. 73], Plaintiffs make repeated attack
upon the third-party sources upon whom Defendant Kennedy reportedly relied for portions of the
arrest affidavit. See, e.g., Pl. R. 56(a)(2) Stmt. ¶ 3 ("Doe #9 was forced to attend inappropriate
'therapy' sessions with Dr. Kagel . . . Doe #9’s lack of disclosure about Daddy Harasz during the
8/11/2011 forensic interview should have been a red flag that the report of the alleged disclosure to
Dr. Kagel was fundamentally flawed and thus suspect." (emphasis in the original)). See also id. ¶¶
3, 9-11. To quote this Court's Conversion Ruling, "Kennedy may have included in his affidavit
unpersuasive or valueless evidence, but he is not liable for the tort of fabrication of evidence unless
he made it up." 239 F. Supp. 3d at 497 (emphasis added).
Accordingly, this opinion will limit its evaluation of the Plaintiffs' Rule 56(a)(2) Statement
to those allegations of fact which pertain directly to alleged falsehood and misrepresentation by
Kennedy. Factual disputes as to "actual fabrication or falsification of evidence" are material; factual
disputes as to whether Defendant Kennedy merely "omitt[ed] potentially helpful information," such
as "interviews with important witnesses and potentially exculpatory video evidence," are not
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material, because such omissions, standing alone, do not state a claim for fabrication of evidence by
Kennedy. See Amory v. Katz, No. 3:15-CV-01535 (VAB), 2016 WL 7377091, at *9 (D. Conn. Dec.
19, 2016) ("Rather than accusing [detective defendants] of creating false evidence against him, Mr.
Amory accuses them of omitting potentially helpful information; namely, interviews with important
witnesses and potentially exculpatory video evidence," accusations insufficient in law to suggest the
detectives "fabricated evidence in violation of Mr. Amory's constitutional rights" during the
preparation of an arrest warrant).
The analysis of the fabrication claim against Kennedy will therefore focus upon Plaintiffs'
several assertions that the affidavit Kennedy drafted, as his application to Judge Taylor for a warrant
to arrest George Harasz, contained significant material misrepresentations or distortions of what
occurred during the August 11 forensic interview of the child Doe #9, as revealed by the tape and
transcript of that interview.
I will consider separately Plaintiffs' several criticisms of the rendition in the Kennedy
affidavit of the contents of the forensic interview. But I preface that analysis by quoting ¶ 8 of the
affidavit in its entirety. While the affidavit describes other incidents at other times and in different
places, ¶ 8 is the place where Kennedy undertakes to describe the substance of what transpired
during the interview. ¶ 8 states:
THAT the affiant observed the forensic interview of the victim
through a one way glass mirror. The victim was asked who he lives
with and he said, "Daddy" and "Dad." The victim said that "Daddy"
is "Daddy Harasz." The victim identifies his penis as his "Weiner."
The victim complains of a headache when he starts to talk about what
"Daddy" does to him. The victim says that he gets in trouble and has
to sit on the steps. The victim then pointed to his "Weiner" and he
said that [name of a sibling, Doe #5, redacted] made him touch his
"Weiner." The victim said that "Daddy grabbed his weiner" and the
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victim yelled, "stop it daddy".
Notice should also be taken of ¶ 14 of Kennedy's affidavit, which recounts a number of
incidents leading Kennedy to the conclusion that "the victim in this case remained consistent in what
he discloses," and says about the forensic interview: "During the forensic interview on 08/11/11, the
victim stated again, 'Daddy grabbed his weiner, then the victim yelled 'Stop it Daddy.'"
In order to evaluate Plaintiffs' claim that Kennedy fabricated evidence against Harasz, the
Court must carefully compare the video tape and typed transcript of the Doe #9's forensic interview.
on the one hand, with what Kennedy said about that interview in the arrest affidavit submitted to
Judge Taylor, on the other hand. That necessity arises from Plaintiffs' principal contention: the
affidavit repeatedly falsely portrayed what was said or done during the interview, each time to
Harasz's disadvantage.
Plaintiffs contend on this motion that ¶ 8 of the affidavit, and its reprise in ¶ 14, contain a
number of instances of fabrication of evidence by Kennedy. I consider Plaintiffs' charges separately.6
*
*
*
*
6
*
*
It should be noted at this juncture that the Plaintiffs' submissions on the fabrication
claims, while nominally advanced on behalf of "Plaintiffs" in the plural, in fact relate only to
Plaintiff Harasz. For example, the Kennedy affidavit Plaintiffs criticize prayed for Judge Taylor
to issue a warrant to arrest Harasz. While co-Plaintiff Douglas Wirth was also arrested,
undoubtedly pursuant to a different judicial warrant issued in response to a different police
affidavit, Wirth is not involved in the fabrication of evidence Plaintiffs allege taints Kennedy's
affidavit about Harasz, nor is Wirth mentioned in connection with the other incidents said to
constitute fabrication. Accordingly, if this Ruling should conclude that triable issues of fact exist
with respect to Plaintiffs' fabrication claims, those triable claims would relate only to Plaintiff
Harasz.
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1. "Weiner"7
The arrest affidavit states at ¶ 8 : "The victim identifies his penis as his 'Weiner'" Plaintiffs
criticize this statement as "misleading" because "in fact, the term 'weiner' was suggested to Doe #9
by the interviewer – it does not appear to be a term that Doe #9 was even aware of." Suppl. Br.
[Doc. 60] at 3.
The interview transcript at page 8 documents the following exchange:
ADULT: Okay. Okay. Now, back to this part, this part that's circled
and you didn't give me a name for it. Can you give me a name for
that, what you use for that part of your body? Or do you want choices
again?
CHILD: I want choices.
ADULT: Okay. Some people call that a penis, some people call that
a wiener, some people call that a pee-pee.
CHILD: (Laughing) A wiener?
ADULT: Yeah. What would you like to call that part?
CHILD: A wiener.
ADULT: Wiener?
CHILD: (Laughing) That's a funny name.
Plaintiffs seem to contend that it was the interviewer, not Doe #9, who "identified" Doe #9's
penis as his "wiener," given that the interviewer suggested to the child the use of that term (among
others) to signify that body part. The verb "Identify" is capable of several applications or meanings.
The interviewer presented to Doe #9 three nouns to apply to a body part, and the child chose
7
The Parties' filings generally spell this word "weiner," while the transcript of the
forensic interview spells it "wiener." I use both spellings in direct quotation.
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"weiner," a word that apparently amused the child because he prefaced his choice by laughing. That
is the exchange recited by the transcript and visible on the tape.
No fabrication of evidence by Kennedy is discernible in his description of it in his affidavit.
Just as a statute (or a legal opinion) will be careful to define critical terms, Kennedy's affidavit
accurately defines, for the reviewing judge, the terms Doe #9 used in the forensic interview. For the
purposes of Doe #9's statements that follow, "Daddy" means Plaintiff Harasz, and "weiner" means
penis. On this particular point, Defendant Kennedy has neither fabricated nor falsified any evidence.
2. Headache
The issue here arises out of references to headaches in the arrest affidavit written by
Kennedy.
In ¶ 8 of his affidavit, where Kennedy undertakes to describe the August 11 forensic
interview, it is said: "The victim complains of a headache when he starts to talk about what 'Daddy'
does to him." ¶ 13 of the affidavit says: "The victim complains of a headache just prior to disclosing
things about 'Daddy.'" ¶ 14 says: "The victim consistently would complain of a headache just prior
to him disclosing a new piece of information." Judging by the affidavit's phrasing, the references in
¶¶ 8 and 13 relate to utterances made during the forensic interview. The reference in ¶ 14 to
headache complaints appears to relate to occasions other than the forensic interview.
On these summary judgment motions, Plaintiffs "deny the references to headaches have to
do with Daddy as they are deliberately mischaracterized and taken out of context." Pl. R. 56(a)(2)
Stmt. ¶ 7. Plaintiffs' main brief [Doc. 51-1 at 4] argues that the quoted sentence from ¶ 8 of the
Kennedy affidavit "is false and misleading. From the video it is clear that the 'headache' was
engendered by the interviewer." Similarly, the brief criticizes the quoted sentence from ¶ 14 as
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"again false and misleading, as there was no observable link between headaches and Harasz from
viewing the video. Again, the headaches are logically induced from the conduct of the interview."
Plaintiffs' supplemental brief [Doc. 60 at 4] returns to ¶ 8 of the affidavit, and says of it: "Kennedy
claimed the victim complains of a headache when he starts to talk about what 'Daddy' does to him.
This is misleading and not accurate, as Kennedy attempted to tie headaches into sexual abuse when
in fact Doe #9 referenced headaches in several contexts. Doe #9's first reference to a 'headache' is
about dad's headache, not his own."
In point of fact, there were three occasions during the forensic interview when the
interviewer asked Doe #9 questions about physical abuse and/or Plaintiff Harasz and Doe #9
responded with references to headaches:
ADULT [social worker Ann Glaser]: Okay. You know what, it's
probably better if you show me on the drawings what happens when
you get hugs and kisses .
CHILD [Doe #9]: It gives me a bad headache.
ADULT: It gives you a bad headache? How come?
CHILD: Because - I don't know.
ADULT: Tell me everything you remember about getting hugs and
kisses from daddy.
CHILD: Um, because he is happy (unintelligible) because he has a
bad headache in there.
....
ADULT: Has anybody asked you to do spankings?
CHILD: (Unintelligible.)
ADULT: Okay. Are you – are you worried about what we're talking
about? Is anything making you worried?
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CHILD: Like give me a bad headache.
ADULT: It gives you a bad headache.
CHILD: Yeah.
....
ADULT: Can you show me how daddy touched your wiener?
CHILD: (Unintelligible), but it gives me a bad headache.
ADULT: I understand. Okay. Talking about this gives you a
headache?
CHILD: Yeah.
ADULT: Okay. Is there somebody you can talk about this when
you're – and when you want to talk about how you feel about it?
CHILD: A bad headache.
ADULT: A bad headache. Okay. How did you feel when daddy
touched your wiener?
CHILD: Sad.
Tr. at 19:25-20:9, 40:10-16, 50:18-51:4. In addition to the criticisms previously noted, Plaintiffs
contend in their Rule 56(a)(2) statement that Kennedy's characterization in his affidavit of these
exchanges during the interview are "mischaracterized and taken out of context," an accusation
Plaintiffs expand upon by saying:
Omitted is that Doe #9 has been barraged with questions for nearly an
hour and has asked the interview to stop the questioning numerous
times, starting shortly after the session began. When the video is seen
as a whole, it can clearly be seen that the headaches were from the
barrage of questions thrown at 4-year-old Doe #9 by the interviewer.
Pl. R. 56(a)(2) Stmt. ¶ 7.
The Plaintiffs' argument is that the references in Kennedy's affidavit to "headaches" constitute
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deliberate fabrication of evidence by Kennedy for the purpose of influencing Judge Taylor to issue
a warrant to arrest George Harasz. A rational jury could not make that finding on the basis of the
"headache" references. "Information may be 'false' if material omissions render an otherwise true
statement false." Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015).
Defendant Kennedy's
characterization of Doe #9's headache complaints does not contain such material omissions.
Omitting the fact that Doe #9 had asked for the interview to be stopped does not render Defendant
Kennedy's characterization of Doe #9's headache complaints false.
The sections of the transcript quoted immediately supra are the only references Doe #9 makes
to his own experience of "headache" in the entire forensic interview. Having reviewed the tape, I
find Plaintiffs' explanation for Doe #9's complaints plausible enough – it may well be that the fouryear-old Doe #9's complaints of headache were inspired by his subjective experience of the interview
process as tiresome, rather than any reaction to the content of the questions. But that does not negate
the factual basis for Defendant Kennedy's affidavit, which is derived from words actually spoken
during the interview.
3.
Sitting on the stairs
Kennedy's arrest affidavit states at ¶ 8: "The victim said that he gets in trouble and has to sit
on the steps." That is the only reference in the affidavit to Doe #9 being made to sit on the steps or
the stairs. Plaintiffs do not contend on this motion that Doe #9 said nothing during the forensic
interview about sitting on the steps; rather, Plaintiffs' criticism is that the affidavit's account was
incomplete. Plaintiffs argue that the affidavit's reference to sitting on the steps "was deliberately
mischaracterized as Doe #9 clearly stated that his SISTER made him sit on the stairs and did not
make any reference to Daddy Harasz and sitting on the stairs." Pl. R. 56(a)(2) Stmt. ¶ 7. Plaintiffs'
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reply brief [Doc. 60] at 5 says of the statement in the arrest warrant: "This is misleading as Kennedy
omits that his sister, not daddy, made him sit on the stairs and nowhere is there any link to Harasz
and the stairs and any sexual abuse."
Plaintiffs' account of this aspect of the interview is corroborated by the interview tape and
transcript. Doe #9 uttered only one explicit reference to being made to sit on the stairs:
ADULT: Okay. What does being a bad boy mean?
CHILD: Getting in trouble and sitting on the stairs.
ADULT: Okay. Who makes you sit on the stairs when you get in
trouble?
CHILD: My sister.
Tr. 22:12-16. Plaintiffs' reply brief at 5-6 quotes a further exchange, when the interviewer returned
to the subject of sitting on the stairs:
ADULT: You know what, C[redacted], you told me that your daddy
makes you sit on the stairs and hits you on the butt.
CHILD: Um-hum.
ADULT: Sends you to time out. What else does daddy do?
CHILD: I don't know.
Tr. 36: 7-11.
Plaintiffs' briefs correctly observe that in the first quoted exchange, Doe #9 said his sister
(not his "daddy") made him sit on the stairs. That being the case, one does not know what to make
of the interviewer's framing the follow-up question in the second exchange with the words"you told
me that your daddy makes you sit on the stairs." If the interviewer's objective was to elicit a
particular response from Doe #9, the effort was unsuccessful; the child's response is non-committal.
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However, the reference Kennedy makes in his affidavit to what Doe #9 said during the
forensic interview about sitting on the stairs does not, by itself or in combination with other
utterances, demonstrate fabrication of evidence by Kennedy for the illicit purpose of influencing
Judge Taylor to issue an arrest warrant for Harasz. The affidavit Kennedy submitted to Judge Taylor
did not explicitly state that Harasz made Doe #9 sit on the stairs. Plaintiffs' complaint is that the
affidavit implied Harasz did so, a misleading implication since Doe #9 ascribed that act to his sister.
There is some force to Plaintiffs' criticism. Given that ¶ 8 of the Kennedy affidavit
principally describes what Doe #9 said to the interviewer about Harasz, a reasonable reader might
infer or assume that it was Harasz (and not Doe #9's sister) who made him sit on the stairs as part
of his punishment for being bad). But that circumstance does not rise to the level of "deliberate
mischaraterization," nor does it constitute fabrication of evidence.
In any event, the affidavit's omission of the fact that Doe #9 ascribed that part of his
punishment to his sister is not material, in the context of the arrest affidavit as a whole.
"[G]overnment officials may be held liable for fabricating evidence through false statements or
omissions that are both material and made knowingly." Morse, 804 F.3d at 547. Fabricated
evidence is material when it may, for example, affect a prosecutor's assessment of the strength of a
case, a prosecutor's decision to pursue charges, or a jury's verdict. Davenport v. City of New York,
No. 15-CV-5890 (MKB), 2017 WL 4356883 at *18 (E.D.N.Y. Sept. 28, 2017) (citing Garnett, 838
F. 3d at 277; Ricciuti v. N.Y.C. Transit Auth., 124 F. 3d 123, 129-30 (2d Cir. 1997)).
Given the nature of the charges made against Plaintiff Harasz, and the disclosures by Doe #9
reported by the arrest affidavit, I hold that no reasonable trier of fact could find that the plausible
implication that Doe #9 reported being sent to sit on the steps by Plaintiff Harasz, rather than by his
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sister, was material to the case against Plaintiff Harasz. Accordingly, on this aspect of the case,
Plaintiffs have failed to establish a genuine dispute as to material fact as to Defendant Kennedy's
liability for fabrication of evidence in this instance.
4. "Daddy grabbed his weiner"
Paragraph 8 of Kennedy's arrest affidavit, which purports to recount the substance of the
forensic interview Kennedy observed, ends with the following sentence, reproduced in boldface for
the sake of clarity:
The victim said that "Daddy grabbed his weiner" and the victim
yelled, "stop it daddy."
¶ 14 of the affidavit gives this account:
During the forensic interview on 08/11/11, the victim stated again,
"Daddy grabbed his weiner ," then the victim yelled "Stop it
Daddy."
Plaintiffs reserve their most scornful criticism of the Kennedy affidavit for this concluding
sentence in ¶ 8. Their main brief asserts at 4: "Kennedy then makes his most outrageous claim in
Paragraph 8 of the arrest affidavit in stating: "The victim said that 'Daddy grabbed his weiner' and
the victim yelled, 'Stop it daddy.' That claim is completely false. The victim steadfastly maintained
that his brother had grabbed his weiner, and never said that Daddy had grabbed his weiner."
Plaintiffs "[d]eny that Doe #9 said that 'Daddy grabbed his weiner.' Doe #9 never actually said
Daddy did anything to his weiner, using his own words – he was only giving yes or no answers to
a barrage of questions thrown at him by the interviewer." Pl. R. 56(a)(2) Stmt. ¶ 7. They further
"[d]eny the 'stop it daddy,' reference because Kenney [sic] deliberately mischaracterized the context.
Kennedy's phrasing in the arrest affidavit is false and misleading. Kennedy writes as though Doe #9
was immediately yelling 'stop it, daddy' after daddy grabbed his weiner but the video does not reflect
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that at all." Id.
A review of the taped transcript reveals the following relevant exchanges:
ADULT: Okay. What did you say when you got spanked and on your
butt and got sent to time out?
CHILD: Stop it, daddy.
ADULT: Um-hum. Did daddy stop when you asked him to stop?
CHILD: Yes.
ADULT: Okay. Anything else that happened that hurt you or that you
did not like?
....
ADULT: All right. . . . [R]emember we were talking about Dr.
K[agel]?
CHILD: Yes.
ADULT: Okay. Did you say something to her?
CHILD: Yes.
ADULT: About CHILD: Stop it.
ADULT: About how daddy touched you?
CHILD: Stop it.
ADULT: Who are you saying stop it to?
CHILD: Dr. K[agel].
ADULT: Okay. Tell me everything you remember about what you
told Dr. K[agel].
CHILD: Stop it, stop it, stop it.
Tr. 31:15-32:21. Later, the interviewer and Doe #9 had the following exchange:
-25-
25
ADULT . . . . you told me that somebody grabbed your wiener, okay?
CHILD: My daddy.
ADULT: Your daddy grabbed your wiener.
CHILD: Yes.
ADULT: Okay. Can you show me on here where your daddy grabbed
you?
CHILD: Down there.
Tr. 42:25-43:3. Moments later, the interviewer picked up the subject again:
ADULT: Okay. When daddy touched your wiener, what did he say?
CHILD: Stop it.
ADULT: He said stop it?
....
CHILD: Let's go back home.
ADULT: When daddy touched your wiener, what was daddy saying?
CHILD: Um, I don't know.
ADULT: When daddy touched your wiener, what were you saying?
CHILD: Stop it.
ADULT: Stop it? And then what happened?
CHILD: Um.
Id. 47:2-13.
Just before the interviewer terminated the interview, this exchange occurred:
ADULT: I just have a couple more questions and you're almost done.
Can you show me how daddy touched your wiener?
CHILD: (Unintelligible), but it gives me a bad headache.
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ADULT: I understand. Okay. Talking about this gives you a
headache?
CHILD: Yeah.
ADULT: Okay. Is there somebody you can talk [to] about this when
you're – and when you want to talk about how you feel about it?
CHILD: A bad headache.
ADULT: A bad headache. Okay. How did you feel when daddy
touched your wiener?
CHILD: Sad.
ADULT: Sad?
CHILD: (Making sound).
ADULT: Okay. Anything else you remember about him touching
your wiener?
CHILD Uh, bunny wanna go back to the playroom.
Tr. 50:16 - 51:9. "Bunny" referred to a well-worn stuffed rabbit Doe #9 kept in his grasp during the
interview. Interviewer Glaser thereupon terminated the interview, the developmentally disabled
four-year-old child having clearly reached the end of his tether. Glaser parted from Doe #9 by
assuring him that he could come back and talk more with her, or talk to "Liz" (Ferreira, his case
worker) or Dr. Kagel, those being people Doe #9 "can talk to if you remember things or if you're
feeling scared or if you need any help ." Tr. 51-52.
It is necessary, at this stage of the analysis, to pay careful attention to the use Kennedy made
of quotation marks when he undertook to describe in his September 1, 2011 arrest affidavit what
transpired during the August 11 forensic interview. The account Kennedy gave of the interview
appears in ¶ 8 of the affidavit. The interview video tape, with an elapsed time of 59 minutes 24
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seconds, reveals that Doe #9 was a difficult subject who taxed the patience and skill of the trained
interviewer. ¶ 8 of Kennedy's affidavit ascribes a number of utterances to Doe #9. Only two of
them, both appearing in the last sentence of ¶ 8, are placed within quotation marks:. That sentence
reads:
The victim said that "Daddy grabbed his weiner" and the victim
yelled, "stop it daddy."
The other utterances the affidavit ascribes to Doe #9 take the form of substantive paraphrases
without being placed in quotation marks, viz, "The victim complains of a headache when he starts
to talk about what 'Daddy' does to him. The victim said that he gets in trouble and has to sit on the
steps."
In support of their accusation that Kennedy fabricated evidence, Plaintiffs stress that of the
several utterances ¶ 8 of the affidavit ascribes to Doe #9, the only two utterances placed in quotation
marks are those appearing in the last sentence: "Daddy grabbed his weiner" and "stop it daddy." If
these quotation marks are intended to convey exact words the child uttered at the precise moment,
the interview transcript does not support that interpretation. While Doe #9 replied in the affirmative
when the interviewer inquired whether "Your daddy grabbed your weiner," at no time did Doe #9
say verbatim: "Daddy grabbed his [my] weiner." And while according to the transcript Doe #9 did
say "stop it Daddy," it was in the quite different context of the child describing how Harasz spanked
him when he was bad. The transcript does not reveal Doe#9 uttering the verbatim phrase "stop it
daddy" following his affirmative response to the interviewer's inquiry into whether Plaintiff Harasz
grabbed Doe #9's penis. When asked by the interviewer "[w]hen Daddy grabbed your wiener, what
were you saying?" Doe #9 responded, "[s]top it." The interviewer had just previously asked "When
daddy touched your weiner, what did he say?" and Doe #9 answered: "Stop it." Between those two
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answers, the child said "Let's go back home"; he was clearly at the end of his tether; the interview
concluded shortly thereafter; the tape and the transcript do not support the verbatim phrase the
affidavit ascribes to Doe #9 at the moment of described weiner-grabbing by "Daddy."
These circumstances are relevant to the issue of fabrication because it is reasonable to infer
that, by placing these statements ascribed to Doe #9 in quotation marks, Kennedy's arrest affidavit
intended the statements to be read as direct quotations, not paraphrased or interpreted dialogue. In
¶ 8, the paragraph from which they are taken, these are the only two quoted phrases, while other
declarations are made without quotation marks, e.g., "The victim complains of a headache . . . . The
victim said that he gets in trouble." In Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511
(1991), an action for defamation, Justice Kennedy wrote for the Court:
In general, quotation marks around a passage indicate to the reader
that the passage reproduces the speaker's words verbatim. They
inform the reader that he or she is reading the statement of the
speaker, not a paraphrase or other indirect interpretation by an author.
By providing this information, quotations add authority to the
statement and credibility to the author's work. Quotations allow the
reader to form his or her own conclusions and to assess the
conclusions of the author, instead of relying entirely upon the author's
characterization of her subject.
In Costanich v. Department of Social and Health Services, 627 F.3d 1101, 1112 (9th Cir.
2010), a § 1983 case brought by a foster care provider against state officials who had revoked her
license, the Ninth Circuit quoted that language from the Supreme Court's decision in Masson, and
characterized Masson as holding that "a jury may find knowledge or reckless disregard of falsity
when a publication attributes to the plaintiff quoted statements that the plaintiff never actually
made." The Costanich plaintiff alleged, inter alia, fabrication of evidence by an investigating social
worker during the civil custody revocation process. The Ninth Circuit concluded that, where the
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defendant social worker "purposefully used quotation marks around many of the purported witness
statements in her investigative report," the use of quotation marks "could support a trier of fact's
conclusion that [she] deliberately fabricated evidence." Id.
Two of the witnesses quoted by the defendant social worker's report submitted sworn letters
denying they had ever made the statements attributed to them. 627 F.3d at 1112. Those letters,
which contrasted dramatically with the purported quotes in the defendant's report, established
genuine issues of material fact as to fabrication of evidence (rising above the level of "recording
errors" or "misstatements"), so that granting summary judgment to defendants on that claim would
be erroneous. Id. at 1113. The Ninth Circuit reasoned that "[r]eporting that a witness said something
she did not say" cannot "be characterized as a misstatement"; rather, such conduct would constitute
"deliberate falsification of evidence." Id. Summary judgment was inappropriate because the
plaintiff "had a Fourteenth Amendment due process right to be free from deliberately fabricated
evidence in a civil child abuse proceeding," and "genuine issues of material fact exist as to whether
[defendant] deliberately fabricated evidence, which led to the termination proceedings and license
revocation." Id. at 1113-14.
In the case at bar, it is important to focus upon the particular conduct of Detective Kennedy
that Plaintiffs claim constituted fabrication of evidence. That claim finds forceful expression in
Plaintiffs' brief [Doc. 62] at 19: "Plaintiffs' claim is that the statements Kennedy made in his arrest
affidavit in regard to the forensic interview were fabricated in that they were affirmative falsehoods
in which he deliberately mischaracterized what Doe #9 said, combined with misleading statements
and omissions." As noted supra, the case turns upon the question of whether Kennedy's account of
the interview was comprised of deliberate falsehoods for the illicit purpose of obtaining an arrest
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warrant for Harasz (which would be actionable under § 1983), or whether any inaccuracies in the
affidavit were the result of reporting error or misstatement (which would not give rise to a viable
constitutional claim for fabrication).
That distinction is illustrated by Reynolds v. County of San Diego, 224 F. Supp. 3d 1034
(S.D. Cal. 2016), rev'd in part on other grounds sub nom. Reynolds v. Bryson, 716 F. App'x 668 (9th
Cir. 2018), which cited and applied the Ninth Circuit's holdings in Costanich. In Reynolds the
plaintiffs, parents of children removed from their custody by defendant county and social workers
on the ground of suspected child abuse, filed a § 1983 action alleging violation of Fourth and
Fourteenth Amendment rights, and state law claims including one for false imprisonment. The
report of one defendant, a social worker named Bryson, who investigated the incident, quoted a
treating physician as saying that the affected child's injury "is a fracture from non-accidental trauma,"
phrasing which tended to suggest abuse as the cause of the trauma. In point of fact, that physician's
hospital note stated that the child had a "left completely displaced femur fracture" and there was
"suspected non-accidental trauma." 224 F. Supp. 3d at 1055 (emphasis added). Another physician
stated in a letter that the child's femur fracture "is concerning for physical abuse." Id. (emphasis
added). In Bryson's report to the agency, which ordered the children removed from the parents'
custody, Bryson omitted the emphasized qualifying adjectives employed by the physicians. Plaintiffs
regarded those omissions as a way to fabricate evidence. "Plaintiffs argue that Bryson's omission
of the words 'suspected' or 'concerning' in describing R.R.'s injury constitutes a fabrication of
evidence." Id.
The Reynolds district court rejected that claim. The court began its analysis by citing and
following Costanich:
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Reporting that a witness said something he or she did not cannot
reasonably be characterized as a recording error or a misstatement.
Costanich, 627 F.3d at 1113. Alternatively, the substitution or
conflation of a word can be reasonably characterized as a
misstatement (e.g., reporting the children tested "positive" for child
abuse when the declarant stated the tests were "consistent" with child
abuse).
224 F.3d at 1055.
The Reynolds court then placed the social worker's omissions in the latter, non-actionable
category. There was other evidence in the investigative record pointing toward non-accidental
trauma, which led the court to reason that,
While quotation marks may generally convey a higher degree of
authority supporting the statement(s) made . . . Defendants'
challenged statements are no more than a conflation of the collected
evidence. Bryson reasonably inferred from the investigative
information that the fracture resulted from non-accidental trauma,
and, as such, her statements were a fair summary of the evidence at
the time. At worst, the omission of the word "suspected" or
"concerning" is reasonably characterized as a reporting error or
misstatement. Costanich, 627 F.3d at 1113. The omission of the
word "suspected" or "concerning" did not conceal contrary evidence
that would have influenced the decision maker's factual conclusion
because the witnesses' original statements were incorporated in the
detention report and corroborated by other evidence. As a result, the
alleged omission was not material.
224 F. 3d at 1056. The court granted summary judgment to certain defendants on plaintiffs'
constitutional claims because plaintiffs failed to demonstrate a genuine issue as to whether those
defendants "engaged in fabrication of evidence, failed to disclose exculpatory evidence, or obtained
evidence by duress." Id. at 1057.
Reverting to the case at bar, I agree with the Ninth Circuit's interpretation of Masson, whose
logical reflections on the use and effect of quotation marks need not be confined to the common law
of defamation. That "[q]uotations allow the reader to form his or her own conclusions and to assess
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the conclusions of the author, instead of relying entirely upon the author's characterization of her
subject," 501 U.S. at 511, is a principle which can be seen at work in an infinite variety of written
words. We deal in this case with the arrest affidavit, written by Detective Kennedy for the attention
of Judge Taylor, whose eventual finding of probable cause and signature transformed the affidavit
it into a warrant for Plaintiff Harasz's arrest.
The state court judges in Costanich, charged with deciding whether plaintiff's foster care
license should be revoked, did not have the benefit of a recording of the numerous interviews
conducted (including six foster children): "None of the interviews was recorded and all but one were
conducted without a third person present." 627 F.3d at 1104 n.4. The social worker's report
"indicated that she had interviewed thirty-four people. She later admitted that she had made only
brief contact with eighteen of the individuals listed." Id. at 1112. Moreover, two of the individuals
the social worker purported to quote swore they had never made the quoted statements. In those
circumstances, the Ninth Circuit held that where the investigator "purposefully used quotation marks
around many of the purported witness statements," such conduct "could support a trier of fact's
conclusion that [defendant] deliberately fabricated evidence." Id.
While there is nothing surprising about the Ninth Circuit's perception of evidence fabrication
in the circumstances presented by Costanich, the misuse or misplacing of quotation marks does not
invariably amount to fabrication. The district court in Reynolds, citing and applying Costanich, drew
this helpful distinction: "Reporting that a witness said something he or she did not cannot reasonably
be characterized as a recording error or a misstatement. Alternatively, the substitution or conflation
of a word can be reasonably characterized as a misstatement." 224 F. Supp. 3d at 1055. The trial
judge in Reynolds declined to find a child abuse investigator fabricated evidence when she omitted
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the words "suspected" and "concerning" from purported quotations of physicians' reports: "At worst,
the omission of the word 'suspected' or 'concerning' is reasonably characterized as a reporting error
or misstatement." Id. at 1056.
In the case at bar, Plaintiffs' assertions of errors or misstatements appearing within the
quotation marks employed by Kennedy come down to this:
(1) Whereas the affidavit states "the victim said that 'Daddy grabbed his weiner,'" the closest
the interview transcript comes to this is an exchange at Tr. 42:21-43:3: "ADULT: [Y]ou told me that
somebody grabbed your wiener, okay? CHILD: My daddy. ADULT: Your daddy grabbed your
wiener. CHILD: Yes. ADULT: Okay. Can you show me on here where your daddy grabbed you?
CHILD: Down there."
(2) Whereas the affidavit states "the victim yelled, "stop it daddy," the closest the interview
transcript comes to this is an exchange at Tr. 47: 8-11: "ADULT: When daddy touched your wiener,
what was daddy saying? CHILD: Um, I don't know. ADULT: When daddy touched your wiener,
what were you saying? CHILD: Stop it."
This record shows that Kennedy, by placing them within quotation marks, ascribed to Doe
#9 words which the child did not say verbatim. Thus, the child did not say "daddy grabbed his [my]
wiener"; he responded "my daddy" when the interviewer remarked that the child had told her
"somebody grabbed your wiener." And the child did not say (or yell) "stop it daddy"; he said "stop
it" (although daddy's presence is implicated by the phrasing of the interviewer's question: "When
daddy touched your wiener, what were you saying?"
While Kennedy's arrest affidavit places within quotation marks certain words that Doe #9 did
not utter, no reasonable trier of fact could find that Kennedy's use of quotation marks constituted
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fabrication of evidence, as that phrase is defined by the cases. Kennedy's "challenged statements,"
to quote Reynolds again, "are no more than a conflation of the collected evidence." 224 F. Supp. 3d
at 1056. Nor do the addition or arrangement of the words in question "conceal contrary evidence
that would have influenced the decision maker's factual conclusion because the witnesses' original
statements were incorporated in the . . . report and corroborated by other evidence. As a result, the
alleged omission was not material." Id.
These observations in Reynolds resonate in the case at bar because Kennedy, Ferreira and the
other members of child abuse investigation team did not conduct the August 11 forensic interview
of Doe #9 in a vacuum. The earlier paragraphs in Kennedy's arrest affidavit recite that on August
9, 2011, Kennedy, while on duty with the Glastonbury police, "received a call from the State of
Connecticut Department of Children and Families, intake worker Karen Ginand, reporting a
disclosure of sexual abuse." Affidavit, ¶ 3. The affidavit describes "the victim in this case" as "a
5 year old male." ¶ 2. It is common ground that this is a reference to Doe #9. Ginand told Kennedy
that "the report came from a psychologist, Dr. Carol Kagel, who reported that the victim disclosed
being sexually abused at the hands of George S. Harasz" of Glastonbury. Affidavit, ¶ 3. "The affiant
[Kennedy] was assigned to investigate." Id. Kennedy describes the results of his initial investigation
in ¶ 6 of the arrest affidavit:
[O]n 08/03/11 the victim attended his ninth therapy session with Dr.
Kagel. At the beginning of the session the victim grabbed two baby
dolls in her office and began to disclose. The victim said, "Daddy"
and the doctor asked which Daddy, since the victim has 2 male
parents. The victim said "George." The victim then said "put it in my
butt." The victim indicated that it hurt. Dr. Kagel asked what was
put in to his butt and the victim said, "penis." The victim then went
on to explain that he was sleeping and screamed real loud. The
victim became distracted and Dr. Kagel tried to reengage the
conversation and the victim said, "I am done, call the police, stop
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Daddy. He keeps holding my penis."
While the affidavit does not say so explicitly, it is apparent, and I find, that this account of Doe #9's
statements to Dr. Kagel during a therapy session on August 3 is based upon an interview Kennedy
conducted with Dr. Kagel after receiving the Department's initial telephone call on August 9.
The arrest affidavit then says at ¶ 7 that "as a result of this disclosure, the affiant [Kennedy]
made contact with DCF Social Worker Shannon Kiss and the victim was set up with a forensic
Interview at Saint Francis Hospital." This is the August 11 forensic interview discussed and quoted
in this Ruling, supra. As the Conversion Ruling points out, 239 F. Supp. 3d at 501, Kennedy
included in his arrest affidavit submitted to Judge Taylor "Ferreira's separate report to Kennedy five
days later, on August 16, that Doe #9 had made additional charges of abuse by Harasz." Kennedy's
arrest affidavit was sworn to on September 1.
The record having been enlarged since the Court's prior opinion, it is now clear that no
reasonable juror could conclude Kennedy committed the tort of fabrication of evidence. At the heart
of the case, Plaintiffs' claim of fabrication targets Dr. Kagel and DCF social worker Ferreira, to
whom Doe #9 reported on separate occasions that Harasz had abused him. Plaintiffs' final brief on
these summary judgment motions argues:
Plaintiffs deny that Doe #9 made the disclosures that were reported
by Dr. Kagel and Ferreira. Plaintiffs claim that these disclosures were
fabricated. This is not an issue of the credibility of Doe #9's
disclosures but of the report of the alleged disclosures. Plaintiffs
admit that Dr. Kagel made a report and that Ferreira made a report,
but Plaintiffs deny Doe #9 made the disclosures that were reported.
. . . . Plaintiffs' claim is that after viewing the videotape, it becomes
abundantly clear that Doe #9 was incapable of making the reported
disclosure to Dr. Kagel on 8/3/2011 and to Ferreira on 8/12/2011 –
that it was self-evident that such disclosures were impossible. . . .
Plaintiffs claim that any viewer of the videotape would conclude that
Doe #9 was incapable of making the disclosures reported by Dr.
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Kagel and Ferreira and that the reports were thus suspect and not
deemed credible. . . . Plaintiffs have consistently used quotation
marks around the word "disclosure" to indicate that the disclosure, as
reported, was not in fact made, but was fabricated – in other word,
the report was a lie.
Plaintiffs' Sur-Reply Brief [Doc. 72] at 1-2.
Under this scenario, to which Plaintiffs are committed, the fabricators of evidence that Harasz
abused Doe #9 are a treating psychologist and a state agency social worker, rather than Kennedy, a
Glastonbury police officer, who included the psychologist's and social worker's reports in the arrest
affidavit he submitted to Judge Taylor. That theory of the case is fatal to a claim by Plaintiff Harasz
that Kennedy fabricated evidence against that Plaintiff. Even if one accepts arguendo Plaintiffs'
startling assertions that Dr. Kagel and Ferreira fabricated – that is to say, made up – Doe #9's
accusations of Harasz, I have previously held in this case: "Kennedy may have included in his
affidavit unpersuasive or valueless evidence, but he is not liable for the tort of fabrication of
evidence unless he made it up." 239 F. Supp. 3d at 497 (emphasis added). That ruling was correct
when made and remains so today.
Kennedy is, of course, responsible for the way in which he worded his arrest affidavit.
Nothing in that aspect of the case sustains a claim for fabrication of evidence. To the extent the
words in the affidavit ascribed to Doe #9 and placed in quotation marks do not fully conform to the
interview videotape, the discrepancies constitute reporting errors or misstatements, products of a
very low order of negligence which bear no resemblance to the deliberate falsehoods characteristic
of an evidence fabricator. Moreover, the quoted language's effect of identifying Harasz as Doe #9's
abuser may be regarded as a conflation of the evidence collected in the affidavit, since the affidavit
also refers to the reports of Dr. Kagel and Ferreira containing the same identification of Plaintiff
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Harasz. It is reasonable to suppose that Kennedy, whose September 1 affidavit depended on his
memory and impressions of the August 11 interview, was also influenced by the Kagel and Ferreira
accounts of the accusations Doe #9 had made against Harasz. Nor are the quotation-mark
discrepancies material to the effect of the arrest affidavit upon Judge Taylor, who issued the warrant
to arrest Harasz on the basis of an affidavit which, in addition to Kennedy's account of the forensic
interview of Doe #9, also informed the judicial officer about the substance of the Kagel and Ferreira
reports.
In short, Kennedy's use of quotation marks in the arrest affidavit does not sustain a claim that
he fabricated evidence against Harasz. The other challenges Plaintiffs make to the wording of the
affidavit do not sustain a fabrication claim against Kennedy, for the reasons stated supra. It follows
that Defendant Kennedy is entitled to summary judgment on Plaintiff's fabrication claim.8
Plaintiffs' theory of fabrication by Kennedy is summed up in one of their briefs on these
motions. "Plaintiffs' claim is that the statements Kennedy made in his arrest affidavit in regard to
the forensic interview were fabricated in that they were affirmative falsehoods in which he
deliberately mischaracterized what Doe #9 said, combined with misleading statements and
omissions." Pl. Br. in Opp. to Glastonbury Def. [Doc 62] at 19. Having reviewed the tape recording
of the forensic interview, and considered each of Plaintiffs' specific objections to the language of the
8
Plaintiffs may also be contending that Kennedy's inclusion in the arrest affidavit of
references to the Kagel and Ferreira reports visit some form of liability upon Kennedy, on the
theory that "any viewer of the videotape" (a universe that includes Kennedy) "would conclude
that Doe #9 was incapable of making the disclosures reported by Dr. Kagel and Ferreira," a
perception that presumably, in Plaintiffs' view, would require Kennedy to disregard the reports
and refuse to act upon them. Such a theory of liability on the part of Kennedy is contrary to
Second Circuit authority. This subject is discussed further in Part V, infra, which considers
qualified immunity.
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arrest affidavit, I hold that no reasonable trier of fact could find that the arrest affidavit's
characterization of the August 11, 2011 forensic interview constituted deliberate fabrication of
evidence by Defendant Kennedy.
That conclusion is appropriately reached on this converted motion for summary judgment.
Additional discovery, including examination of the forensic interview videotape and its transcript,
has been accomplished. Defendants Kennedy and Glastonbury, who move for summary judgment
on the factual ground that Kennedy did nothing wrong during his participation in the investigation
into whether Harasz abused Doe #9, must show "that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Plaintiffs may successfully resist that motion if they assert that the factual propriety of
Kennedy's conduct "is genuinely disputed," Rule 56(c)(1), and support that assertion by citing to
admissible evidence, Rule 56(c)(1)(A). Plaintiffs at bar assert that Kennedy fabricated evidence
against Harasz, a fact which if proved would be material to these Defendants' liability. But the
dispute cannot be regarded as genuine, since Plaintiffs cite to no evidence supporting their factual
position. For the reasons stated supra, a charge of fabrication by Kennedy is not made out by
comparing his arrest affidavit with the interview videotape; and Plaintiffs offer nothing further
except calling Kennedy names.
In that respect, this case resembles the one confronting Judge Underhill in Turner v. Boyle,
116 F. Supp. 3d 58 (D. Conn. 2015), where the plaintiff charged a particular defendant with
maliciously initiating a criminal proceeding against him. Judge Underhill granted a Rule 12(b)(6)
motion to dismiss that complaint, reasoning in part:
Instead of offering any factual allegations indicating that Bednarz
made a false complaint or otherwise attempted to ensure that Hardy
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initiated criminal proceedings against Turner, Turner relies on
conjecture, hyperbole and ad hominem attacks to encourage the court
to speculate that Bednarz acted with malice.
116 F. Supp. 3d at 86. That reasoning echoes the Second Circuit's holding in Gannon v. United
Parcel Service, 529 F. App'x 102, 103 (2d Cir. 2013): "The non-moving party must present specific
evidence demonstrating a genuine dispute, rather than mere conclusory accusations or some
metaphysical doubt as to the material facts." (Citations and internal quotation marks omitted).
Judge Underhill declined to speculate in Turner. So do I in the case at bar, in respect of Plaintiffs'
fabrication claim against Kennedy, and also their fabrication claim against Ferreira, which suffers
from the same lack of evidence.
B. As to Defendant Ferreira
1. As to Doe #9's purported disclosure to Dr. Kagel
Plaintiffs allege Defendant Ferreira's complicity in fabrication of evidence as to the disclosure
Doe #9 reportedly made to Dr. Kagel: "The 'disclosure' to Kagel . . . does not appear to have come
out of the blue but could well have been the product of pressure from Ferreira, as seen from the file
notes of Dr. Kagel on July 28, 2011." Pl. Br. in Opp. to Ferreira, at 17. In their response to
Defendant Ferreira's Rule 56(a)(1) statement of material facts, Plaintiffs characterize the underlying
evidence of their suspicion thus:
Dr. Kagel’s file documents that Liz Ferreira had numerous contacts
with Dr. Kagel both before and after 8/3/2011. In reviewing Dr.
Kagel’s file there are some notes that conspicuously stand out. Phone
messages document that "Liz" placed numerous calls to Dr. Kagel
both prior to after the 8/3/2011 "disclosure." There is a remarkable
file note on 7/28/2011 in which Dr. Kagel wrote that she spoke
directly with Liz – and noted that there had been "no disclosure" of
either boy to date. "She indicated . . . police have not filed criminal
charges to date. DCF will list both fathers on their registry of sexual
offenders of minors. DCF will seek permanent custody and
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placement of the boys." It is noteworthy, and suspicious, that during
the very next session, Doe #9 makes a "disclosure" which was at odds
with anything said previously and strikingly at odds with the forensic
interview, when the "disclosure" could not be duplicated. Dr. Kagel
also notes phone calls with Liz Ferreira on 8/4/2011, 8/7/2011,
8/10/2011, 8/16/2011, as well as on other occasions.
Pl. Amend. Rule 56(a)(2) Stmt. re Def. Ferreira ¶ 61 (citations omitted) (citing to Kagel Records,
Doc. 58 (filed under seal)).
Having reviewed the referenced notes in detail, I find that the frequent phone contact between
two professionals, who were then collaborating on the treatment and care of a vulnerable child
involved in a complicated and delicate civil and criminal investigation, fails to arouse my suspicion.
Drawing every reasonable inference in Plaintiffs' favor, the purportedly "suspicious" contact between
Dr. Kagel and Defendant Ferreira is not enough to raise a substantive issue of material fact as to
whether the August 3, 2011 disclosure to Dr. Kagel was fabricated (whether at Defendant Ferreira's
behest or otherwise). "[M]ere conclusory allegations, speculation or conjecture will not avail a party
resisting summary judgment." Cifarelli, 93 F.3d at 51. Having failed to produce any admissible
evidence casting doubt on the evidence proffered by Defendants, I cannot find that the doubt as to
whether Doe #9 actually made the disclosure reported by Dr. Kagel amounts to anything more than
speculation or conjecture
2. As to Doe #9's purported disclosure of August 12, 2011
Plaintiffs also allege fabrication as to Defendant Ferreira's report that Doe #9 made a further
disclosure to her, during a sibling visit on August 12, 2011: "The alleged 'disclosure' . . . the very day
after the . . . forensic interview is so markedly at odds with Doe #9’s behavior, conduct and
verbalization (or lack thereof) during the forensic interview that it calls into question the veracity of
the 'disclosure' reported by Ferreira." Pl. Br. in Opp. to Ferreira, at 15. "So significant is the
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disparity that this raises a material question of fact that should be decided by a trier of fact." Id. at
17. In support of this contention, Plaintiffs point to two purported discrepancies in Ferreira's report
of the August 12 disclosure, which they allege cast sufficient doubt upon Defendant Ferreira's
veracity to preclude her motion for summary judgment.
First, Plaintiffs point to Doe #9's reported reference, on August 12, to the locking of the door
to "daddy's office." Plaintiffs have provided uncontested affidavits indicating that the room at
Plaintiffs' home which was referred to as Plaintiff's Harasz's "office" did not have a door. Pl. Br.
in Opp. to Ferreira, at 15. Second, Plaintiffs argue that Defendant Ferreira's report that, on August
12, Doe #9 said he was "scared" of Plaintiff Harasz is inherently suspicious in light of Doe #9's
expressions of affection for Plaintiff Harasz during the forensic interview, one day earlier. Id.
I find both of these purportedly suspicious discrepancies unavailing. "[M]ere conclusory
allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli,
93 F.3d at 51. Plaintiffs' own expert opines at length on Doe #9's impaired memory. See Lothstein
Aff. [Doc. 62-8]. Defendant Ferreira reports statements made by Doe #9 that were inconsistent with
statements he made during the forensic interview. Testimonial inconsistency on the part of a fouryear-old with significant developmental delay is not evidence of the reporters' mendacity. See, e.g.,
Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir. 1999) ("we are not dealing with a
situation in which the evidence should have suggested . . . unequivocally, that Benjamin and
Jonathan had been coached rather than abused. The transcript of Benjamin's interview, for instance,
reveals that the child at times claimed that he had been coached by his mother, but at other times
maintained that his allegations were true."); Walker v. City of New York, 63 F. Supp. 3d 301, 314
(E.D.N.Y. 2014) ("The fact that T.W. did not disclose that he was beaten during the at-home
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interview . . . does not constitute perjury or fabrication on the part of [individual defendants]. There
are numerous reasons why T.W. would not have stated that he was being beaten during that time."),
aff'd, 621 F. App'x 74 (2d Cir. 2015). As Defendant Ferreira notes, Doe #9 "was familiar with and
comfortable with Dr. Kagel, his foster parent [Lisa K] and Ms. Ferreira. [Forensic interviewer] Ann
Glaser was essentially a stranger to him." Ferreira Br. at 8 n. 7. Defendant Ferreira could reasonably
have believed that Doe #9's lack of familiarity with Glaser might "account for why he was less
forthcoming at the St. Francis Hospital interview." Id.
The undisputed facts in this matter establish that three adults – Dr. Kagel, Lisa K, and
Defendant Ferreira – made first-hand reports of Doe #9's disclosures of sexual abuse. Plaintiffs
evidently believe that these three adults conspired to fabricate these reports, but Plaintiffs have not
established any genuine issue of material fact as to the veracity of these three adults' reports of Doe
#9's disclosures (to state it clearly, the veracity of Doe #9's disclosures is not at issue in this case).
C. As to the methods of the forensic interview (Defendants Kennedy and Ferreira)
In addition to their contentions that Defendant Kennedy's arrest affidavit falsified the contents
forensic interview, Plaintiffs make a distinct, though related, claim that the methods employed in the
forensic interview amounted to fabrication of evidence, in violation of their constitutional rights, and
that Defendants Kennedy and Ferreira share responsibility for the purportedly unconstitutional
interviewing methods to such an extent that they should be liable for fabrication of evidence under
§ 1983.
Defendants contend that they played no active role in the forensic interview. Plaintiffs do
not dispute that Defendants had no contact with Doe #9 during the interview. Pl. Rule 56(a)(2) Stmt.
re Ferreira, ¶ 9; Pl. Rule 56(a)(2) Stmt. re Glastonbury Def., ¶ 17. However, Plaintiffs have
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established a genuine factual dispute as to whether Defendants directed any part of the interview:
"It can be seen on the videotape that the interviewer leaves the room on several occasions to consult
with the observers. . . . It can be clearly seen that the interviewer DID have contact throughout the
interview with the observers through her earpiece, even Doe #9 could hear that the observers were
speaking to her." Pl. Rule 56(a)(2) Stmt re Glastonbury Def., ¶¶ 15-16. See also Pl. Rule 56(a)(2)
Stmt re Ferreira, ¶ 7.
Having reviewed the video tape, I find merit to Plaintiffs' contention that there is a genuine
issue of fact as to the level of contact between Defendants and Glaser during the interview, and,
consequently, the Defendants' possible direction of some part of that interview. At this summary
judgment stage the question is, then, whether this factual dispute is material. A fact is material if
it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248 (1986).
Assuming, arguendo, that Defendants did direct Glaser during the forensic interview, and were
responsible for some of the questions asked of Doe #9, would that direction affect the outcome of
this suit?
Plaintiffs' expert witness, Dr. Lothstein, affies that:
22. I am familiar with techniques and protocols for conducting for
forensic interviews, including the interviewing of young children. It
is very important to ask open-ended questions, rather than leading and
coaching the witness.
23. Interviewer bias can play a significant role in skewing a forensic
interview.
24. I have reviewed the forensic interview of Doe #9 on 8/11/2011,
as well as reviewed the transcript of that interview. It is my opinion
that the leading questions and repeated badgering of Doe #9 by the
interviewer led to an extremely tainted forensic interview.
Lothstein Aff., Doc. 62-8.
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"Mere allegations that defendants used interviewing techniques that were in some sense
improper[,] without more, cannot serve as the basis for a claim under section 1983." Zahrey v. City
of New York, No. CIV.A. 98-4546 DCPJC, 2009 WL 54495, at *12 (S.D.N.Y. Jan. 7, 2009)
(alterations omitted) (quoting Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc)),
amended on reconsideration in part, No. CIVA 98-4546 DCP JCF, 2009 WL 1024261 (S.D.N.Y.
Apr. 15, 2009). Plaintiffs have failed to identify what "fabrication" resulted from the disputed
interview techniques. Lothstein's affidavit and Plaintiffs' various filings all argue, with great vigor,
that no significant disclosure of untoward conduct was made during the forensic interview. To
quote, once again, the Conversion Ruling, "a plaintiff fails to state a claim against a defendant for
fabrication of evidence sufficiently plausible to survive a motion to dismiss if “his factual allegations
regarding the evidence used in the criminal case against him do not actually include any specific
claims of fabrication." 239 F. Supp. 3d at 492.
Plaintiffs criticize Glaser's interrogatory techniques as leading, repetitive, badgering, and the
like, with reference to Doe #9's descriptions of Harasz's conduct. Such criticisms disregard the fact
that Glaser was not interviewing Doe #9 as a matter of routine or for no particular reason. Glaser
interviewed Doe #9 on August 11 because Dr. Kagel, the child's treating psychologist, told DCF that
eight days earlier Doe #9 accused "Daddy Harasz" of abusing him. Glaser's principal responsibility
in interviewing Doe #9 was to follow up on Kagel's report and develop any relevant facts. It is
hardly surprising that Glaser's questioning relied, on occasion, upon repetitive or suggestive
techniques.
Glaser, it is recalled, is not a defendant in this action. Kennedy and Ferreira are defendants.
Glaser having committed no improprieties in interviewing technique, neither by extension did
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Kennedy or Ferreira.
VI. Malicious Prosecution (as to Defendant Kennedy)
As to Defendant Kennedy, the Amended Complaint makes two claims for malicious
prosecution, one brought under federal law as an infringement of Plaintiffs' constitutional rights, and
the second brought under state tort law. Amend. Compl. ¶¶ 183-93, 203-04.
Under Connecticut law, applicable to both the federal and state law claims, the plaintiff in
an action for malicious prosecution must establish each of these elements: "(1) the defendant
initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal
proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause;
and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an
offender to justice." Turner, 116 F. Supp. 3d at 85 (internal quotation marks omitted) (quoting
McHale v. W.B.S. Corp., 187 Conn. 444, 447 (Conn. 1982)).
It will be helpful to refer once again to the Conversion Ruling, which laid out the malicious
prosecution claim against Kennedy thus:
If Kennedy fabricated evidence as alleged by Plaintiffs, then
Plaintiffs may also have satisfied the elements of a malicious
prosecution claim.
Reverting again to the four elements of malicious prosecution . . .
the acts of Kennedy in connection with the preparation and
submission of the arrest warrants satisfy the first element: he may be
regarded as an individual who initiated the criminal proceedings
against Plaintiffs. The second element is also satisfied, since those
proceedings were terminated in favor of both Plaintiffs. Plaintiffs
have pled that even though the arrest warrant was issued, Kennedy
acted without probable cause because of the alleged fabrication of
evidence. Given that Kennedy is alleged to have fabricated evidence,
the requisite malice has also been pled.
239 F. Supp. 3d at 503-04 (citations omitted) (citing Bristol v. Queens Cty, No. CV-09-5544, 2013
-464
WL1121264, at *11 (E.D.N.Y. Feb. 27, 2013), adopting report and recommendation, 2013 WL
1120895 (Mar. 18, 2013)). In short, my prior ruling found that the pleaded elements of a fabrication
of evidence claim would also be sufficient to plead the third and fourth elements of a malicious
prosecution claim, namely the absence of probable cause and the presence of malice.
Having found, as a matter of law, that Plaintiffs cannot establish a claim of fabrication of
evidence against Defendant Kennedy, I will now consider the question of probable cause, the
existence of which would be dispositive of Plaintiffs' remaining claims against Defendant Kennedy.
"The existence of probable cause is a complete defense to a claim of malicious prosecution." Turner,
116 F. Supp. 3d at 86 (citing Connecticut cases). If Defendant Kennedy can demonstrate that, as
to probable cause, there is no genuine dispute as to any material fact, he is entitled to summary
judgment as to the claims of malicious prosecution.
"[F]ederal and Connecticut law are identical in holding that probable cause to arrest exists
when police officers have knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime." Walczyk v. Rio, 496 F.3d 139, 156
(2d Cir. 2007) (internal quotation marks omitted) (quoting Weyant v. Okst, 101 F. 3d 845, 852 (2d
Cir. 1996) and citing State v. James, 261 Conn. 395, 405 (Conn. 2002)).
Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of
probable cause, creates a presumption that it was objectively reasonable for the officers to believe
that there was probable cause, and a plaintiff who argues that a warrant was issued on less than
probable cause faces a heavy burden. In order to mount such a challenge, the plaintiff must make a
"substantial preliminary showing that the affiant knowingly and intentionally, or with reckless
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disregard for the truth, made a false statement in his affidavit and that the allegedly false statement
was necessary to the finding of probable cause." Golino v. City of New Haven, 950 F.2d 864, 870
(2d Cir. 1991) (internal quotation marks omitted) (quoting Franks v. Delaware, 438 U.S. 154, 15556 (1978)). See also Magnotti v. Kuntz, 918 F. 2d 364, 368 (2d Cir. 1990) (applying the Franks
standard to civil rights actions).
The Plaintiffs in this case, Harasz and Wirth, were arrested following the issuance of facially
valid warrants for their arrests. To defeat the presumption of probable cause, Plaintiffs must
challenge the truthfulness of Defendant Kennedy's arrest affidavit. I have evaluated Plaintiffs'
various challenges to Defendant Kennedy's truthfulness, in detail, in this opinion's consideration of
the fabrication of evidence claims against him. To briefly recapitulate, I find that, drawing all
reasonable inferences in Plaintiffs' favor, and evaluating the arrest affidavit with the assistance of
the videotape of the forensic interview, no reasonable trier of fact could find that the arrest affidavit's
characterization of the August 11, 2011 forensic interview constituted knowing, intentional, or
reckless falsification, as required to overcome the presumption of probable cause established by the
issuance of an arrest warrant by a neutral magistrate. Plaintiffs' prosecutions were not without
probable cause, and their claim for wrongful prosecution therefore fails as a matter of law.
Defendant Kennedy is entitled to summary judgment on this count.
VII. Qualified Immunity
Defendants Ferreira and Kennedy have asserted qualified immunity as an alternative grounds
for summary judgment in their favor. See Ferreira Br. [Doc. 48] at 5 n. 3; Glastonbury Def. Br.
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[Doc. 52-1] at 24.9 While the Court rejected Defendant Kennedy's assertion of qualified immunity
at the motion to dismiss stage, see 239 F. Supp. 3d at 504 n. 17, it is now appropriate to reconsider
this question, in light of the evidence presented for summary judgment. That reconsideration leads
to this conclusion:
Even if the analyses set forth supra with respect to the liability of Kennedy and Ferreira on
various claims are erroneous, all claims against Kennedy and Ferreira are barred by the doctrine of
qualified immunity.
The doctrine of qualified immunity "protects government officials from suits seeking to
impose personal liability for money damages based on unsettled rights or on conduct that was not
objectively unreasonable." Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d Cir. 1999) (quoting
Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998)) ; see also Pearson v. Callahan, 555 U.S. 223
(2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A government official sued in his individual capacity is entitled to
qualified immunity (1) if the conduct attributed to him was not
prohibited by federal law; or (2) where that conduct was so
prohibited, if the plaintiff's right not to be subjected to such conduct
by the defendant was not clearly established at the time it occurred;
or (3) if the defendant's action was objectively legally reasonable in
light of the legal rules that were clearly established at the time it was
taken.
Manganiello v. City of New York, 612 F.3d 149, 164 (2d Cir. 2010) (citations, internal quotation
marks, and alterations omitted). Only the third aspect of the qualified immunity doctrine is
genuinely at issue in the present case, for freedom from governmental fabrication of evidence and
9
Defendant Ferreira's papers may not explicitly argue that she is entitled to qualified
immunity, but the cited footnote quotes Wilkinson, 182 F. 3d at 99, for the proposition that "it is
well settled that child protective services workers are entitled to qualified immunity for their
conduct during the course of abuse investigations."
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malicious prosecution are constitutional rights that have long been clearly established.
Since qualified immunity bars liability for an individual-capacity suit, the determination of
whether such immunity exists is case-specific. The decisive characteristic specific to the case at bar
is that the case arises out of a governmental child abuse investigation. At the pertinent times,
Kennedy and Ferreira were local and state officials forming part of a governmental team
investigating a report of possible child abuse. In consequence, their actions of omission and
commission fall within the Second Circuit's holding in Wilkinson, 182 F.3d at 104-05:
This Circuit has adopted a standard governing case workers which
reflects the recognized need for unusual deference in the abuse
investigation context. An investigation passes constitutional muster
provided simply that case workers have a "reasonable basis" for their
findings of abuse. . . . In applying a reasonableness standard in the
abuse context, courts must be especially sensitive to the pressurized
circumstances routinely confronting case workers, circumstances in
which decisions between "difficult alternatives" often need to be
made on the basis of limited or conflicting information.
(Quoting van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 866 (2d Cir.1990)).
In Wilkinson, a plaintiff father sued defendant social workers based on an allegedly
inadequate child abuse investigation leading to the workers' substantiation of an estranged wife's
charges that the father had sexually abused a son. The Second Circuit affirmed summary judgment
in favor of the social workers on the ground, inter alia, of qualified immunity on federal and state
claims for misconduct allegedly committed during the child abuse investigation. Circuit Judge
Sotomayor (as she then was) said of prior Second Circuit authority:
This precedent demonstrates that courts have routinely granted
qualified immunity, as a matter of law, even when plaintiffs have
alleged the very types of investigative deficiencies now at issue, e.g.,
where case workers failed to pursue exculpatory information, ignored
medical evidence, behaved "unprofessionally," or even manipulated
interviews.
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182 F.3d at 108 (alteration omitted). The "reasonable basis test" the Second Circuit announced in
Wilkinson "places certain constitutional limitations on case workers, i.e., their decisions to declare
claims of abuse substantiated must be consistent with some significant portion of the evidence before
them." Id. Turning to the facts presented by Wilkinson, the Second Circuit upheld the alternative
defense of qualified immunity for the following reasons:
Before today . . . courts had excused a broad array of alleged
investigative errors without even hinting at the particular
circumstances in which such errors might amount to a constitutional
violation. Accordingly, at the time of their investigation, defendants
were left with little or no basis to conclude that their alleged
misconduct could even potentially intrude upon plaintiffs'
constitutional rights. Thus, while we make a close call in holding that
there was no constitutional violation on the record before us, it is
abundantly clear that it was objectively reasonable for defendants, in
light of prior case law, to conclude that their investigation, however
flawed, was consistent with plaintiffs' "clearly established" rights.
182 F.3d at 109.
The Second Circuit applied its Wilkinson holding in the subsequent case of V.S. v.
Muhammad, 595 F.3d 426 (2d Cir. 2010), where the district court denied qualified immunity to
defendant child abuse case workers on the ground that an examining physician "was known to
defendants to have repeatedly misdiagnosed child injuries as evidence of child abuse," which the
district judge felt created "an issue of material fact that goes directly to the objective reasonableness
of [the agency] in seizing and removing T.S. from his mother." 593 F.3d at 431. The Second Circuit
reversed on grounds of qualified immunity and remanded with instructions to dismiss plaintiffs'
claims. District Judge Rakoff (sitting by designation) wrote for the Court of Appeals:
But to impose on a[] . . . caseworker the obligation in such
circumstances of assessing the reliability of a qualified doctor's past
and present diagnoses would impose a wholly unreasonable burden
of the very kind qualified immunity is designed to remove.
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Id. (citing Wilkinson).
Muhammad is instructive in the case at bar because Harasz contends that Kennedy and
Ferreira should have assessed the reliability of and then disregarded Dr. Kagel's report describing
Doe #9's credible statements that Harasz was abusive. Kennedy, a police officer assigned to
investigate suspected child abuse, and Ferreira, a state agency case worker sharing that assignment,
were under no obligation to conduct that sort of evaluation of a troubling report made by a qualified
psychologist who was the child's therapist. The Glastonbury police and the DCF did just what
common sense and reason required of them: commencing a child abuse investigation by means of
a forensic interview (Kennedy and Ferreira participating together); conveying a further account by
Doe #9 of abuse by Harasz (Ferreira reporting to Kennedy); and including these investigatory results
in an affidavit seeking Harasz's arrest (Kenendy as author of the affidavit). Kennedy and Ferreira
are entitled to qualified immunity because the actions they took during the child abuse investigation
in this case were objectively reasonable. Neither individual Defendant had reason to believe he or
she was violating the United States Constitution.10
The Second Circuit's opinions in Wilkinson and Muhammad, which address claims against
social services case workers, apply to Defendant Ferreira in this case, a case worker with the DCF.
The rationale of the cited cases should also, I conclude, apply to Defendant Kennedy, a police agent,
since his participation in the pertinent events was as a member of an inter-agency team formed to
investigate the report that Harasz had abused Doe #9.
In the alternative, if Kennedy is regarded solely as the author of the arrest warrant presented
10
Kennedy and Ferreira would not be entitled to qualified immunity if they had
fabricated evidence against Harasz. However, for the reasons stated supra, Plaintiffs are entitled
to summary judgment dismissing Plaintiffs' fabrication claims against them.
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to Judge Taylor, he is equally entitled to qualified immunity. When police officers offer an affidavit
in support of an application for an arrest warrant, they act in a capacity similar to complaining
witnesses. Malley v. Briggs, 475 U.S. 335, 341-42 (1986). If an arrest warrant appears on its face
to support probable cause, then an officer is entitled to qualified immunity as a matter of law for
claims based on that affidavit. Id. at 344-45. "Only where the warrant application is so lacking in
indicia of probable cause as to render official belief in its existence unreasonable will the shield of
immunity be lost." Id. (citation omitted). An application is considered to be objectively reasonable
"if 'officers of reasonable competence could disagree' on the legality of the defendant's actions."
Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley, 475 U.S. at 341). Kennedy's
arrest warrant referred to and relied upon the reports of Dr. Kagel and Ferreira that Doe #9 had said
Harasz abused him, as well as upon the forensic interview, which despite its imperfections, contained
declarations by Doe #9 consistent with that accusation. These are sufficient indicia of probable
cause to entitle Kennedy, as author of the arrest affidavit, to qualified immunity from any claims
arising out of that conduct on Kennedy's part.
Plaintiffs' citations to other cases do not bring this case out of the qualified immunity rule the
Second Circuit has established for government officers conducting child abuse investigations.
articulated for those government officers. Plaintiffs rely upon Hardwick v. County of Orange, 844
F.3d 1112 (9th Cir. 2017). That case in inapposite. In Hardwick, the Ninth Circuit affirmed a
district court's denial of qualified immunity, at the summary judgment stage, to defendant social
workers. These social workers had been found by a state jury to have, in the conduct of the child
removal investigation underlying the federal suit, "lied, falsified evidence and suppressed
exculpatory evidence . . . with malice." 844 F.3d at 1114. As the court of appeals rightly noted,
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"government perjury and the knowing use of false evidence are absolutely and obviously
irreconcilable with the Fourteenth Amendment's guarantee of Due Process in our courts." Id. at
1119. Here, Plaintiffs have presented no evidence could lead a reasonable juror to conclude that
either individual Defendant perjured him or herself, nor knowingly used false evidence, nor acted
with malice towards Plaintiffs.
As to Defendant Kennedy, Plaintiffs cite to Morse, 804 F. 3d 538, and argue that "[b]ased
on the facts of this case, in which Kennedy submitted his arrest affidavit with material
misstatements, deliberate mischaracterizations, and omissions in regard to the forensic interview,
he is thus not entitled to qualified immunity." Pl. Br. in Opp. to Glastonbury Def. at 21. The Second
Circuit held in Morse that:
qualified immunity is unavailable on a claim for denial of the right to
a fair trial where that claim is premised on proof that a defendant
knowingly fabricated evidence and where a reasonable jury could so
find. . . . [B]ecause there is no plausible legal distinction between
misstatements and omissions that we can perceive in this context, we
conclude that it was not "objectively legally reasonable" for the
defendants in this case to believe that it was permissible for them to
knowingly make material omissions in the creation of the billing
summaries, thereby knowingly altering evidence during a criminal
investigation.
804 F.3d at 550 (internal quotation marks and citations omitted). While one cannot quarrel with this
holding in Morse, it does not apply to the case at bar, where after discovery Plaintiffs have failed to
present evidence (as opposed to innuendo or ad hominem attacks) indicating that either Kennedy or
Ferreira "knowingly fabricated evidence," made "material omissions," or "knowingly alter[ed]
evidence during a criminal investigation."
Plaintiffs have failed to demonstrate that their rights to due process were violated; and
Defendants have shown that their actions were objectively legally reasonable at that time.
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Defendants Ferreira and Kennedy each possess qualified immunity in their individual capacities as
to Plaintiffs claims of fabrication of evidence and malicious prosecution.
VIII. Indemnification (as to Defendant Town of Glastonbury)
As to Defendant Town, the Amended Complaint makes a claim for indemnification. Amend.
Compl. ¶¶ 210-12. Having found Defendant Kennedy entitled to summary judgment on all claims,
there is no dispute of material fact as to the attendant indemnification of Defendant Town of
Glastonbury, and the Town is likewise entitled to summary judgment.
IX. Conclusion
For each of the foregoing reasons, Defendants' Motions for Summary Judgment [Docs. 48,
52] are hereby GRANTED in its entirety. Pursuant to Federal Rule of Civil Procedure 56(a), there
is no genuine dispute as to any material fact and the movants are entitled to judgment as a matter of
law.
In the alternative, the individual defendants Ferreira and Kennedy are entitled to "qualified
immunity" in their individual capacities with respect to damages on Plaintiffs' § 1983 claims.
Because Defendant Kennedy is entitled to summary judgment on all claims against him,
Plaintiffs' cross-motion for partial summary judgment [Doc. 51] against Defendant Kennedy is
DENIED.
The Court therefore GRANTS Defendants' motions for summary judgment [Docs. 48, 52]
as to Defendants Ferreira, Kennedy, and Town of Glastonbury. The Clerk is directed to enter
judgment for Defendants in accordance with Federal Rule of Civil Procedure 58. Those judgments
will terminate the case, and the Clerk is directed to close the file.
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It is SO ORDERED.
Dated: New Haven, Connecticut
July 19, 2018
/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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